Appeals court: Martinovich can't represent himself

NEWPORT NEWS — A federal appeals court has denied a request from the imprisoned head of a now-defunct investment brokerage in Newport News to handle his own appeal.

After having a string of lawyers on the case, Jeffrey A. Martinovich, former chief executive of MICG Investment Management LLC, had sought to file the appeal on his own. He asked that his current lawyer on the case, Lawrence H. Woodward Jr. of Virginia Beach, be "terminated."

But this week, the 4th U.S. Circuit Court of Appeals rejected that idea. "Because there is no constitutional right to self-representation on appeal … and given the complexity of the case, we deny Martinovich's motions," the court ruled.

The court did say, however, that Martinovich can file his own brief, separate from his lawyer's, to buttress the argument. While the main appeal brief is due Oct. 17, Martinovich's "pro se supplemental brief" must be filed by Oct. 31.

In two motions in July asking to represent himself, Martinovich — now serving an 11-year sentence in federal prison in New Jersey — said he's well versed in the issues, including the 3,300 pages of trial transcripts. As such, he contended, he's best man for the job.

Martinovich, 48, pointed out that he has a bachelor's degree from the U.S. Air Force Academy, an MBA from the College of William and Mary, "and subsequently built a comprehensive wealth management firm from the ground up managing 100 associates, 3,000 clients and nearly $1 billion in assets."

"Mr. Martinovich ... understands the potential consequences of proceeding without representation," he wrote, saying he's making the request with his "eyes wide open." But he said he "waives these rights voluntarily and without threats, promises, force or coercion."

In a 1975 Supreme Court case, the court determined that defendants have the right to represent themselves at trial. But in a 2000 decision, Martinez vs. Court of Appeal of California, the Supreme Court held unanimously that defendants don't have the right to handle their own appeals.

"We are not aware of any historical consensus establishing a right of self-representation on appeal," Justice John Paul Stevens wrote in 2000. Under the Sixth Amendment, he wrote, defendants' rights are "presented strictly" as rights at trial — and "provide no basis for a right to self-representation on appeal."

"Experience has taught us that a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney," Stevens added.

Following a month-long trial in the spring of 2013, Martinovich was found guilty of 17 of 25 counts of fraud.

Prosecutors said Martinovich defrauded MICG hedge fund investors by working behind the scenes to create an artificially inflated value for a solar energy company firm held by one of the funds — thereby increasing the fees MICG could collect.

He was sentenced last fall to 11 years and eight months behind bars.

Shortly thereafter, his trial lawyer, James O. Broccoletti of Norfolk, began preparing to appeal the case to the 4th Circuit.

But in asking off the case in March, Broccoletti cited a Virginia State Bar rule that says lawyer can no longer represent a client if the lawyer must provide testimony "other than on behalf of the client" that's prejudicial to him.

The March filing provided no further details, though Martinovich wrote in a July 25 court filing that the "government's intervention" had "removed his preferred counsel" from the case.

Not long after his trial ended, federal investigators discovered expenditures that Martinovich made from one of the hedge funds while awaiting trial. That included using more than $159,000 from the funds to pay for his lawyer fees and other trial costs. It's unclear whether that investigation into those expenditures is still ongoing.

Two court-appointed lawyers later appointed to the case have been removed by the appeals court. One of those lawyers cited a conflict of interest because his firm represented one of Martinovich's clients. Another was removed after Martinovich argued the lawyer's one-man firm wasn't up to the task.